On the specific decision, the CRTC rejected the UBB model it approved less than a year ago, acknowledging that it was too inflexible and could block independent ISPs from differentiating their services. The issue then boiled down to Bell’s preferred model based on volume and the independent ISPs’ approach who preferred capacity based models. The Commission ruled that capacity-based models are a better approach since they are more consistent with how network providers plan their networks and less susceptible to billing disputes.

With Bell’s preferred approach out of the way, the Commission was left to choose between two capacity models – the independent providers’ “95th percentile” solution and MTS Allstream’s capacity model. The Commission chose a variant on the MTS Allstream model that involves both a monthly access fee and a monthly capacity charge that can increase in increments of 100 Mbps. That model is even more flexible than what MTS proposed, suggesting that the Commission was primarily focused on building in as much flexibility for independent providers as possible. In addition to this model (which the Commission calls an approved capacity model), the large ISPs can continue to use flat rate models which provide for unlimited usage.

Although I agree that further changes should be made, I’m not so sure I go along with all of Professor Geist’s suggestions. The CRTC clearly does not function the way that it should.

The CRTC’s mandate is supposedly to protect consumers. Looking at the history of UBB it is clear that the CRTC does not. In practice, consumers don’t even make it onto the their radar at all; the only CRTC concern is the ISPs.

The CRTC continues to allow Bell Canada to deploy:

Deep Packet Inspection. This essentially allows Bell Canada total access to all unencrypted Internet traffic. Which means the technology gives Bell the means to read our email, and the CRTC allows this. With zero oversight. The CRTC trusts Bell with their privacy, but I don’t. And although I’m not even a Bell customer, my email is not safe from Bell, because my ISP goes through Bell. This is no more reasonable than giving blanket permission to Canada Post to open postal mail.

Gouging Customers. I was aghast that the CRTC didn’t understand that most Canadians pay a lot for mediocre Internet access, and worse, didn’t seem to believe the issue was relevant to their deliberations. Have to move to a different geographical location in order to get an another choice of ISP is not “choice.”

Throttling the Internet. This one still boggles my mind today just as much as when I first heard about it. When customers pay for a level of service, and the service provider deliberately impedes that service, providing inferior service than has been contracted for is wrong. And again, Bell is not only does this to their own customers, but to the customers of the Independent ISPs as well. Worse still, Bell decide singles out specific Internet traffic to discriminate against it. The CRTC gave Bell permission to do this, the implication being that is that all encrypted traffic is “Downloaders” It seems to me, even if someone is using the Internet for nefarious means, to illicitly download copyrighted content, say, it should not give an ISP the right to provide less bandwidth than the customer paid for. This argument is flawed; one crime doesn’t justify another.

Maybe I’m old fashioned, but I grew up in a world where deliberately short changing consumers was considered to be fraud, and when even the government law enforcement officials were required to get a warrant before they read my mail.

These are some of the reasons why I don’t think the CRTC is doing its job of protecting consumers. This could be fixed by making sure that the CRTC reflected its real constituency better. [hint: the CRTC should not be limited to past or present Telecom employees, but should also include consumers.] There shouldn’t have to be a major outcry before the CRTC hears consumer; if the CRTC is going to continue to exist, it needs to be responsive to the public.

If the CRTC isn’t reformed, it should be dissolved and replaced with something that does look out for citizens.

Both Bell and Rogers have far too much control over too many facets of the industries they inhabit. This sure looks like what our American friends might define as “anti-trust.” Where was the CRTC … how did things get this messed up if the CRTC was doing its job?

These corporations are not going to behave any better unless compelled to do so. Maybe its time they were broken up; the Internet is an essential service, perhaps it should be administered like any other utility, for the public good rather than the corporate greed.

The recent discussion about Usage Based Billing being a ‘cash grab’ has generated much debate: Is a cash grab warranted? Should Internet users have to pay according to the volume they download?
Does UBB discourage innovation?

The simple answer to the underlying question is:
ISPs and telcos need a way to fund
the Internet monitoring functions required by
the Anti Counterfeiting Trade Agreement (ACTA) and Canada’s Investigating and Preventing Criminal Electronic Communications Act (Bill C-52).

To understand the real impact, though, it is important to view UBB in context with other issues, which together:

jeopardize the sovereignty of our nation,

have a chilling effect on freedom of expression, and

threaten the privacy and democratic freedoms traditionally enjoyed in Canada.

It can be argued that these measures do nothing to protect Canada or Canadians from the threat of terrorism (real or perceived), US protectionism or other economic threats, or future retribution by the Department of Homeland Security or other agencies.

UBB In Context

ACTA (the Anti-Counterfeiting Trade Agreement) is an international agreement to protect intellectual property and guard against piracy. It was hammered out by a handful of countries and requires signatories to have civil and criminal law that complies with it. Canada may have bargained away our ability to create independent legislation simply by being a party to ACTA, with terms allowing Canada to pass laws more stringent than required, but depriving us of the authority to create laws that contravene ACTA. This clearly undermines Canadian sovereignty.

ACTA was Negotiated in Secret

The US declared the draft ACTA text to be confidential as a matter of national security (the economy is a matter of ‘national security’ in both the US and Canada) so negotiation of the international scheme to guard against piracy and copyright infringement was done in secret, with a level of secrecy that excluded input from Canadian citizens, consumer and human rights groups, or Canada’s Information and Privacy Commissioner; yet the draft was circulated amongst rights-holder lobbyists (generally from the recording and motion picture industries). Many experts consider this to be an unprecedented degree of secrecy for a set of copyright protection rules.

Once approved, ACTA member countries are expected to put pressure on their trading partners to have them join the treaty — of course, after ACTA is finalized, so the newcomers will have no option but to accept the terms set by the original negotiating parties.

Prosecution, Remedies and Penalties under ACTA

Under ACTA, allegations advanced by rights holders lead to prosecution, remedies and penalties decided by judicial or ‘administrative’ authorities, with restitution and “lost profits” calculated by the rights holder. Although an alleged infringer can be ordered to reimburse the rights holder for the retail price and “lost profits”, legal expenses, court costs, and other amounts, as well as bearing the expense of destruction of allegedly counterfeit products, if it’s ultimately found that there was no infringement, the alleged infringer can ask for damages, but no process or formula is articulated.

Border officials will be compelled to carry out injunctions obtained in other countries, even if legal in the border official’s country. ACTA will also:

facilitate seizure of off patent medicines in the country of production and export,

empower member countries to seize and destroy exports while in transit to other countries

encourage countries to seize and inspect personal devices for any pirated material

The costs will be born by the individual being searched or the sender of the seized goods.

Privacy invasive provisions require release of personal identity information about alleged infringers, and information about any party who might be associated with alleged infringers are included in ACTA.

Third parties (i.e., distributors, NGOs, public health authorities) are put at risk of injunctions, provisional measures, and even criminal penalties, including imprisonment and severe economic losses:

Suppliers of active pharmaceutical ingredients used for producing generic medicines;

distributors and retailers who stock generic medicines;

NGOs who provide treatment;

funders who support health programs; and

drug regulatory authorities who examine medicines

could be implicated under ACTA. Ascertaining the third party involvement will require inspecting digital records; and ACTA compels disclosure and international sharing of that information.

Potential repercussions may well deter direct or indirect involvement in research, production, sale and distribution of affordable generic medicines.

Deep Packet Inspection (DPI) of online activity is already being used to identify alleged infringements. DPI has been in use by Canadian ISPs and telcos for some time. In August 2009, Canada’s Privacy Commissioner ruled on DPI used by Bell/Sympatico (Case Summary #2009-010). The Commissioner recommended that Bell Canada inform customers about Deep Packet Inspection, but did not prohibit its use.

“It is relatively easy to paint a picture of a network where DPI, unchecked, could be used to monitor the activities of its users.”

C-52 is intended “to ensure that telecommunications service providers have the capability to enable national security and law enforcement agencies to exercise their authority to intercept communications and to require telecommunications service providers to provide subscriber and other information” upon request.

No warrant is necessary.

C-52 also requires the telcos and ISPs to provide the transmissions in an unencrypted form and to “comply with any prescribed confidentiality or security measures“.

to provide “any information in the service provider’s possession or control respecting:

the name,

address,

telephone number and

electronic mail address of any subscriber to any of the service provider’s telecommunications services and the
Internet protocol address,

mobile identification number,

electronic serial number,

local service provider identifier,

international mobile equipment identity number,

international mobile subscriber identity number and

subscriber identity module card number that are associated with the subscriber’s service and equipment”.

Under current Canadian law, Internet Service Providers who have the means to spy on their customers (Deep Packet Inspection capability) can be asked to do so by the government, but they cannot be compelled to have such means.

Under C-52, Telcos are required to have and bear the cost of the equipment necessary to comply; and the equipment can be specified by the government or enforcement agencies. The cost of actually determining and providing the information to law enforcement will be billed to and paid by the requesting agency — with our tax dollars.

Usage Based Billing could well pay the costs of the Government mandated spyware that will be required should Bill C-52 become law. Not only will citizens find themselves stripped of privacy and spied on but we will be overcharged to pay for it.

The Future of ACTA

The ACTA text was finalized in November 2010, and the US and Canada (quietly) asked for feedback to be submitted by February 15th, 2011. The request was visible on the DFAIT website for a short time.

ACTA participants successfully completed a legal verification of the finalized ACTA text at a meeting in Sydney, Australia between November 30 and December 3, 2010.

Every Canadian Needs A Copy

The Standing Committee on Canadian Heritage met to discuss ACTA and other matters on January 31, for 2 hours, and was scheduled to meet again on February 7, 2011.

The final ACTA text includes mechanisms to amend the agreement. That provides a ‘back door’ to get acceptance of the most contentious issues (such as the three strikes rule) that were rejected during the negotiations.

Even before the three strikes rule is adopted, the scope of ACTA provides the latitude that permits individual member nations to impose a three strikes rule.

So between ACTA and other laws, international agreements, and multilateral treaties to share information it’s easy enough to circumvent the provisions of Section 8 of Canada’s Charter of Rights and Freedoms and to circumvent the protections embodied in all of Canada’s various privacy laws.

Canadians’ most intimate information can be sent outside of Canada to be examined, and then the results back into Canada. Canada and the US have been known to do that on occasion, typically to protect ‘national security’ or guard against the perceived threat of ‘terrorism’.

Stripping Canadian Law of citizen protection measures that have evolved over hundreds of years has not been shown to protect citizens from terrorism, but rather to open up new avenues of compromising and removing the Rights and Freedoms Canadians expect to enjoy under our democratic system.

“Between May 10 and July 13, more than 2000 Canadian individuals and organizations registered

to share their ideas and submissions. You can read their contributions — and the comments from other users — in the Submissions Area and the Idea Forum.”
—digitaleconomy.gc.ca

Sounds great.

Until you contrast that figure with the more than eight thousand Canadians who made submissions to last year’s Copyright Consultation.

What happened? Why was there so little participation for this public consultation?

Probably the single biggest turnoff to citizen participation– the thing that kept Canadians away from the Government’s Digital Economy Consultation in droves– was Bill C-32. When this so called “Copyright Modernization” legislation was introduced in the house of Commons, it’s similarity to the American DMCA made it instantly clear that this Government chose to ignore the majority of citizen input from the Copyright Consultation. As a result, the prevailing feeling among Canadians seemed to be “why bother?”

Making it Hard to be Heard

The complexity of the Digital Economy Consultation leads me to the conclusion that it wasn’t put together in a day, rather it had been in the works for quite a while. Yet I didn’t see any publicity build up. It was announced and launched with lightning speed. By the Federal Government.

Was the timing a deliberate attempt to to distract Canadians from our outrage about “Bill C-32: the Copyright Modernization Act” ?

The Digital Economy Consultation made it emphatically clear that copyright would not be considered a valid topic. People who used the discussion forums complained that any copyright discussions were quickly shut down.

This position would have been perfectly reasonable if the Government kept of copyright and the digital technology issues separate. But the Government’s own draft copyright legislation Bill C-32 strayed from the realm of copyright into the world of digital locks– and in fact subjugates all copyright to DRM/TRM. First the Government dissolved the division between the two areas and then they refused to allow discussion of the ramifications. Clearly copyright should have been an acceptable topic for discussion in the Digital Consultation. Disallowing it resulted in a credibility loss.

After all, the magnificent response to the Copyright Consultation was not what the Government wanted to hear. Certainly they didn’t want to hear it all again in the Digital Economy Consultation. Did they set out to make this Digital Economy Consultation deliberately difficult, precisely to discourage ordinary Canadian citizens from speaking up? Certainly the Government raised barriers to participation for the Digital Economy Consultation.

First Barrier: almost no lead time.

The Digital Economy Website was announced and then it was underway.

Second Barrier: Quantities of prerequisite reading.

A lot to read onsite, beginning with the Consultation Paper Improving Canada’s Digital Advantage: Strategies for Sustainable Prosperity. Copied into Open Office it ran 32 pages. The digitaleconomy.gc.ca site was bursting with links to reference material (much of it government web pages). It listed rules and regulations, defined the terms of the consultation, provided News, FAQ’s and forums, although I never saw them since there just wasn’t enough time.

There was a fair bit to read and think about before participating in the online forums or making a submission. Which would have been fine except for the time limit. Either the consultation period should have been substantially longer, or the reference and background material should have been made available online for at least a couple of weeks before the Consultation even began.

Third Barrier

The last problem was the submission form itself. Unlike the Copyright Consultation where you could answer all the questions in one submission, the Digital Economy Consultation was segregated into different categories. You had to choose one category or another. Some people made submissions in more than one category, and some answered questions for all the categories in one submission. Either way the very process was awkward, and more difficult than it had to be.

Did they actually want submissions?

The Submissions Page

My submission was the first posted after the extension. I could have made it in under the wire– there was an hour left to submit when I finished– but once I saw the Consultation had been extended I chose to take the time to proof read.

When my submission was posted it was disappointing to see my summary wasn’t included. Instead a portion of the submission was extracted. So I uploaded it a second time. When my resubmission appeared it was added to the submission page without replacing the original.

Multiple drafts of the same submission appear to be separate submissions. A few submissions were made in both official languages, and both these appear as individual submissions to a casual perusal, again making it look as though there were more submissions.

It took quite a bit of effort just to separate the organizations from the individuals. Initially I thought it would be a simple matter to scroll through the submissions page. In many cases the extract didn’t clearly indicate if the submission was on behalf of an individual or an organization, making it necessary to read the entire summary, or even the submission. And even then there were some I still wasn’t entirely sure of.

When I noticed new submissions being added, I was curious if any submissions had been expunged, so I ran the URL through archive.org’s the WayBack Machine. This is an excellent online tool that makes digital snapshots of the web for safekeeping, and allowing for web searches into the past. But it seems the Canadian Government doesn’t allow this kind of oversight since they’ve elected to disallow robot searches.

The Government’s decision to lock out the Wayback Machine means Canadians have no way to tell if submissions have been quietly removed. Or not.

Even so, you don’t have to be a statistical analyst to see that there weren’t very many submissions at all.

Looking at the Submissions

Discounting duplicates, only 52 submissions were submitted before the original deadline.

Which sounds like an excellent reason to extend the deadline. After all, over 8,000 Submissions were made to the Copyright Consultation.

At the eleventh hour, the Government extended the deadline for four days.

During those four days another 206 submissions were made, bringing the grand total up to 258 submissions.

Before the deadline, individuals made 18 of the submissions while organizations made 34. Around half.

After the deadline extension, individuals made an additional 18 submissions, while organizations made an additional 188 submissions. That’s a stunningly different ratio, with only ten percent of post deadline submissions being made by individuals.

extension

Four days was an odd amount of time to choose for an extension. Last year’s Copyright Consultation announced a 48 hour “grace period” to allow all the submissions to get in. Of course, the government site was being overwhelmed by the volume of last day submissions which resulted in an enormous backlog.

In a perfect world I would have liked a week to make the best submission possible, because I think it would probably have taken a week — full time — to do it properly.

So four days wasn’t really enough time for most people to come up with a comprehensive full fledged submission from scratch. But four days might be just enough time for a team.

Clearly this isn’t the case for organizations because they can spread the work around. I have to wonder why so many of these organizations came in after the initial deadline. Is it possible that some organizations didn’t even start a submission before the deadline?

Was the deadline extension to allow entities government friendly entities an opportunity to whip up quick submissions to slant the results of the Digital Economy Consultation in the direction the Government always intended to go?

Or perhaps some submissions came in deliberately too late for discussion in the idea forum? The Digital Economy Idea-Forum on the website was shut down at the same time as the submissions deadline, leaving no official place for discussion of these late submissions. Perhaps some of the late submitters hoped to avoid public scrutiny.

I don’t know the answer to these questions, but I am curious. Was this consultation doomed from the beginning by stacking the deck?

This is the digEcon, not the copycon. It isn’t like the government is snowed in under the response– far from it. The amount of digEcon registrants was a quarter the number of submissions made for the copycon.

Not only that, the copycon didn’t post submissions locked in PDFs (with the exception of the SOCAN submission, which asked for and received special treatment), they converted them to html so they could be easily read by anyone online without forcing citizens to use the proprietary Adobe reader. (And although PDF is quasi-open source, only the proprietary Adobe reader reads Adobe PDFs properly.)

It was plausible that it would take some time to get all of the copycon submissions online. That is certainly not true here.

If these submissions were actually submitted before the (extended!) deadline, there doesn’t seem to be any legitimate rationale as to why it’s taking so long to include them. Particularly as submissions were accepted via the digEcon site’s online form.

What possible justification is there for these submissions to be posted one at a time? The most reasonable supposition is that they are still being submitted. Is it possible that some organizations made these late submissions because the Government asked them to?

If submissions are closed they should be closed to everyone. If the consultation is open, it should be open to all. Doing it this way at the very least gives the appearance of impropriety: it appears that submissions are closed unless they says what the government wants to hear.

This simply further undermines any credibility of the consultation may have had.

Shuffling the Deck

Going back to the digEcon submissions page again tonight (Thursday 22, July, 2010) things have again changed. Duplicate submissions– or at least some of them, including my initial submission — have been removed.

I can’t say either way if there are more or fewer submissions, but my numbers seem a wee bit off. There are also menu options at the top of the submissions list which allows selection of a listing of submissions by Individual or Organization as well as by “most recent”, which may or may not have been there before. It would have been extraordinarily helpful had it been there/had I noticed before.

At this time I don’t have any more time to sink into this article, so I think it’s time to cut to the chase.

My vote for the most incredible submission made by a corporation is the one made by Adobe Systems Canada Inc.. This submission caught my eye as one of the very few submissions made in plain text rather than sealed into an Adobe PDF requiring the use of the proprietary Adobe reader. It seems Adobe knows when it is appropriate to use PDFs.

Of the small number of submissions that were made, there does seem to be some variety.

Carrier/ISPs and Independent ISPs

Carrier/ISPs

The Internet “backbone” is made up of “Carriers”, or the companies that control the wire that the Internet travels across, namely telephone and cable wire. Internet Service Provers, or ISPs connect to the Internet through the carriers.

Some ISPs are branches of the same companies that are carriers. In addition to being Internet carriers and ISPs, many if not all of these corporations are involved in other businesses as cell phone providers, broadcasters and content creators. This certainly seems to be a recipe for anti-competitive practices at the very least, and certainly is Canada’s largest barrier to net neutrality.

Bell in particular is appears to be many different companies on paper, but in reality these are a family of Bell companies, who share similar if not the same goals. I’ve included CTVglobemedia in the Bell/Telus group since Bell is a major shareholder.

The disproportionately large volume of input from the Bell/Telus group in particular worries me.

Currently, Canadian Internet users are living under the threat of Bell introduction of Usage Based Billing. Although not yet implemented, UBB has been approved by the CRTC with the specific intent of discouraging Canadian Internet use. The CRTC approved this as a way for Bell the carrier to practice Internet “traffic management”. The CRTC approved Usage Based Billing because Bell Canada convinced them that the best way to manage the Internet was to curb customer use by imposing caps and high prices

Because Bell thinks decreased Canadian Internet participation is a good idea.

This seems like the absolute worst thing that Canada could possibly do in terms of growing a Digital Economy. Any proposal on how the Canadian Government should manage Canada’s Digital Economy from a corporate entity that believes reducing Canadian Internet participation is a good thing makes me very nervous indeed.